Extraditing Habre: Senegal's International Obligations

JURIST Guest Columnist Reed Brody, Counsel and Spokesperson for Human Rights Watch, argues that to secure justice for Hissène Habré's victims, the International Court of Justice must force Senegal to adhere to its international obligations and extradite the former Chadian dictator...

The International Court of Justice (ICJ) has set arguments to begin on Monday on Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), the dispute over the fate of the former Chadian dictator Hissène Habré. After 21 years of what Bishop Desmond Tutu has described as an "interminable political and legal soap opera" for Habré's victims, the Court should order Senegal to extradite Habré to Belgium.

Habré ruled Chad from 1982 until he was deposed in 1990 by President Idriss Déby Itno and fled to Senegal. His one-party regime was marked by widespread atrocities, including waves of ethnic campaigns. Files of Habré's political police, the DDS (Direction de la Documentation et de la Sécurité), which were discovered by Human Rights Watch in 2001, reveal the names of 1,208 people who were killed or died in detention and a total of 12,321 victims of human rights violations.

Belgium's application to the ICJ charges that Senegal has violated the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as well as its customary international law obligations by failing to either prosecute or extradite Habré. In papers filed with the ICJ, Senegal has argued that it still intends to prosecute Habré. Senegalese officials, however, including President Abdoulaye Wade, have publicly ruled out Habré's trial on numerous occasions. During 2011, Senegal's Foreign Minister Madické Niang said time and again that Habré would not be tried in Senegal. In July 2011, President Wade announced that he was expelling Habré to Chad  where he has already been condemned to deathin absentia for unrelated crimes  only to retract that decision in face of an international outcry. In announcing the retraction, Senegal's foreign minister again ruled out Habré's trial in Senegal.

The government of Chad also announced in July 2011 that it was in favor of extraditing Habré to Belgium. In 2002, the Chadian government waived Habré's immunity so he could be prosecuted in Belgium.

Habré was first indicted in Senegal in 2000, but after political interference by the Senegalese government, Senegalese courts held that they had no jurisdiction to prosecute Habré for extraterritorial crimes as Senegal had not incorporated provisions of the Torture Convention requiring states to establish their jurisdiction over acts of torture committed abroad when the alleged perpetrator is present in their territory. The decision, and the surrounding political interference, were denounced by UN rapporteurs on torture and judicial independence. Other victims of Habré, including several Belgian citizens, then filed a case against Habré in Belgium. After four years of investigation, a Belgian judge requested Habré's extradition in September 2005. A Senegalese court ruled that it lacked jurisdiction to decide on the extradition request, however.

Senegal then asked the African Union (AU) "to indicate the jurisdiction which is competent to try this matter." When the AU called on Senegal to prosecute Habré "on behalf of Africa," Wade accepted. The next four years were taken up with wrangling over the trial budget and framework, however.

As negotiations dragged on, and after Wade threatened to let Habré leave Senegal, Belgium filed suit against Senegal at the ICJ in February 2009. In May 2009, in response to Belgium's request for the indication of provisional measures, Senegal formally pledged [PDF] not to allow Habré to leave Senegal pending the ICJ's final judgment.

In November 2010, the Court of Justice of the Economic Community of West African States (ECOWAS) held that Habré's trial should be carried out by "a special ad hoc procedure of an international character." Later that month, a Donors Round-Table fully funded the projected trial budget while the AU responded to ECOWAS court decision by proposing a special court within the Senegalese justice system with the presidents of the trial court and the appeals court appointed by the AU. In June 2011, however, Senegal withdrew from negotiations with the AU over creation of the court.

Since then, a Senegalese appeals court has rejected two more Belgian extradition requests. In both cases, the Senegalese government apparently did not transmit the Belgian legal papers intact to the court.

In May 2006, the UN Committee Against Torture found that Senegal had violated the Torture Convention and called on Senegal to prosecute or extradite Habré. In July 2011, Navi Pillay, the UN High Commissioner for Human Rights, reminded the Senegalese government that "[i]t is a violation of international law to shelter a person who has committed torture or other crimes against humanity, without prosecuting or extraditing him." In November 2011, the Committee Against Torture's rapporteur again reminded Senegal of its obligations.

In July 2011, the Chadian government complained that "While some victims have died and others wait for over two decades for justice, Hissène Habré, accused of extremely serious crimes, continues to enjoy his comfortable exile in Dakar, Senegal."

The Senegalese government has given the victims the run-around for 21 years and is now apparently trying to pull the wool over the ICJ's eyes. The ICJ should thus not only find Senegal in violation of its treaty obligations to extradite or prosecute, but expressly call on Senegal to extradite Habré.

The Court has never had a chance to rule on the Torture Convention, ratified by 150 states, or on the obligation to extradite or prosecute. If the Court rules for Belgium, it could not only speed up Habré's trial, but set an important precedent that a state may not shield someone accused of the worst atrocities.

Reed Brody is Counsel and Spokesperson for Human Rights Watch in Brussels. He serves as the lead counsel against Habré and also served as counsel in the cases against Augusto Pinochet and Jean-Claude "Baby Doc" Duvalier. Prior to joining Human Rights Watch, he led UN teams investigating massacres in the Democratic Republic of Congo and monitoring human rights in El Salvador, and he also helped to prosecute human rights crimes in Haiti.